The Endangered Species Act (ESA) in the 109th Congress: Conflicting Values and Difficult Choices

Publication Date: January 2007

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Environment

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Abstract:

The 109th Congress considered numerous proposals to amend the Endangered Species Act (ESA; P.L. 93-205, 16 U.S.C. §§1531-1543). Major issues in recent years have included changing the role of science in decision-making, modifying critical habitat (CH) procedures, incorporating further protection and incentives for property owners, and increasing protection of listed species, among others. In addition, many have advocated enacting as law some ESA regulations promulgated during the Clinton Administration.

The ESA has been one of the more contentious environmental laws. This may stem from its strict substantive provisions, which can affect the use of both federal and nonfederal lands and resources. Under the ESA, species of plants and animals (both vertebrate and invertebrate) can be listed as endangered or threatened according to assessments of their risk of extinction. Once a species is listed, powerful legal tools are available to aid its recovery and protect its habitat. The ESA may also be controversial because dwindling species are usually harbingers of broader ecosystem decline: the most common cause of listing species is habitat loss.

The authorization for spending under the ESA expired on October 1, 1992. The prohibitions and requirements of the ESA remain in force, even in the absence of an authorization, and funds have been appropriated to implement the administrative provisions of the ESA in each subsequent fiscal year. In the 109th Congress, H.R. 3824 and S. 2110 proposed to extensively amend and reauthorize the ESA; the House passed H.R. 3824 (amended) on September 29, 2005. Proponents of both bills argued that they were designed to make the ESA more effective by redefining the relationship between private and public property uses and species protection, implementing new incentives for species conservation, and removing what some see as undue land use restrictions. However, critics argued that proposed changes created gaps in the ESA safety net of protections and prohibitions.

The 109th Congress enacted legislation that (1) established a pilot project in Wyoming, Montana, Colorado, Utah, and New Mexico to better coordinate consultations and the preparation of biological opinions under ESA §7 (P.L. 109-58); (2) authorized certain activities related to the Middle Rio Grande Endangered Species Collaborative Program (P.L. 109-103); (3) reauthorized Upper Colorado and San Juan River Basin endangered fish recovery programs (P.L. 109-183); (4) expanded a Hawaiian National Wildlife Refuge to protect habitat for endangered waterbirds (P.L. 109-225); (5) expanded the authority of the Secretary of the Interior to assist private landowners in restoring, enhancing, and managing endangered and threatened species habitat on private land through the Partners for Fish and Wildlife Program (P.L. 109-294); (6) reauthorized and amended the Neotropical Migratory Bird Conservation Act and the Great Ape Conservation Act of 2000 (P.L. 109-363); and (7) established programs to manage marine debris and address its adverse effects on endangered species (P.L. 109-449). This report also identifies additional bills that were introduced in the 109th Congress to address specific concerns related to how the ESA is implemented and how endangered species are managed.